Blythe v. Hinckley

• Decision Date: 06 December 1897
• Docket Number: 12,144.
• Citation: 84 F. 228
• Court: U.S. District Court — Northern District of California
• Parties: BLYTHE et al. v. HINCKLEY et al.

84 F. 228

BLYTHE et al. v. HINCKLEY et al.

No. 12,144.

United States Circuit Court, N.D. California.

December 6, 1897

The suit was commenced December 3, 1895, by John W. Blythe, a citizen of Kentucky, and Henry T. Blythe, a citizen of Arkansas, against Florence Blythe Hinckley, Frederick W Hinckley, and the Blythe Company, citizens of California. The bill of complaint alleges that the complainants are the owners and tenants in common with each other of certain lands described in the bill, situated in the city and county of San Francisco, and in the county of San Diego, Cal.; that said lands are of the value of $3,000,000 and upward; that the defendants claim that they have or own adversely to complainants some estate, title, or interest in said lands but that the claim is false and groundless, and without warrant of law. December 12, 1895, the complainants filed an amended bill of complaint, containing additional allegations to the effect that the defendant the Blythe Company was a corporation organized and existing under the laws of the state of California, having its office and principal place of business at the city and county of San Francisco, in said state; that the parcel of land described as situated in the city and county of San Francisco is of the value of $3,000,000 and upward; that Frederick W. Hinckley was the husband of Florence Blythe Hinckley; that each of the defendants is a citizen of the state of California, and a resident in the Northern district of the state; and that, at the time of the commencement of the suit, neither of the parties was in possession of the lands described in the bill of complaint. A summons was issued upon this complaint, and on December 21, 1895, was served upon George W. Towle, Jr. the attorney for the defendant the Blythe Company, and personally served upon the defendants Florence Blythe Hinckley and Frederick W. Hinckley. December 18, 1895, the Blythe Company filed an answer to the amended bill. The answer contained a cross complaint against the complainants in which it was alleged that the Blythe Company was the owner of the land described in the amended bill of complaint, and that the claim of the complainants thereto was false and groundless, and without warrant of fact or law. December 30, 1895, Florence Blythe Hinckley and Frederick W. Hinckley appeared specially, by leave of court, and moved to quash the service of summons upon them, on the ground that the suit was one that is only cognizable in a court of equity, and the proper process to be issued in such a suit to be served on the defendants was the process of subpoena. The motion was granted February 10, 1896, and the service of summons upon the Hinckleys was vacated and discharged, and the summons quashed. August 27, 1896, the Hinckleys again appeared specially by leave of court, and moved to dismiss the action, under rule 66 of this court, on the ground that the complainant had not prosecuted the action with due diligence, and had failed to have process of subpoena issued within 90 days after filing the bill of complaint. This motion was denied upon a showing by complainants' counsel that he was not aware of the existence of rule 66. A subpoena was thereupon issued, and personally served upon the Hinckleys on September 28, 1896, and on November 2, 1896, they entered a general appearance to the amended bill of complaint.

On December 14, 1896, the Hinckleys filed a plea in bar to the action, alleging that the statement in the amended bill of complaint that the complainants were the owners, as tenants in common with each other, of the lands therein described, was based solely upon the claim that they were the lawful heirs and next of kin of Thomas H. Blythe, deceased, and that upon his death they inherited and acquired, by succession, the title to the real property described in the bill of complaint. The plea alleged that Thomas H. Blythe died, intestate, in San Francisco, April 4, 1883, and that at and before his death he was a citizen of the United States, and the owner of the real estate in controversy. The plea then proceeds to set forth in detail the probate proceeding in the superior court of San Francisco in the estate of Thomas H. Blythe, deceased, and the proceedings in the superior court upon the petition of Florence Blythe, under the provisions of section 1664 of the Code of Civil Procedure of the state, wherein, on October 22, 1890, it was adjudged and decreed that Florence Blythe (afterwards Florence Blythe Hinckley) was the child and daughter of Thomas H. Blythe, deceased, and that he legally adopted her as his lawful child and heir, and that she was the sole owner of all the estate of Thomas H. Blythe, deceased, of every name, nature, and description, wherever situated, and that she was his sole surviving and only lawful heir, and was the only person entitled to have and receive distribution of his estate. The plea also recited proceedings on appeal to the supreme court of the state, and the judgment of that court affirming the judgment of the superior court; also the proceedings in the superior court resulting in a decree distributing the estate of Thomas H. Blythe to Florence Blythe Hinckley; an appeal from that decree to the supreme court of the state; and the affirmance of the decree by that court. The plea further alleged that on December 4, 1894, and prior to the commencement of this suit, and prior to the filing of the amended bill of complaint, the possession of the whole of the real property had, under the decree of distribution, been given and delivered to Florence Blythe Hinckley, and that she had, and ever since that time continued to have, the possession of the same. Before the plea was heard, the complainants, on January 14, 1897, filed a second amended and supplemental bill, referring only to the real estate situated in the city and county of San Francisco, and containing many allegations not contained in previous bills. It is alleged that Boswell M. Blythe, a citizen of California, and a resident at Downey, in California, was one of the heirs at law of Thomas H. Blythe, and was entitled to have some share in the estate adjudged and decreed to him; but, by reason of his citizenship, he could not be joined as complainant in the bill, and he was therefore made a defendant, that his rights and interests might be protected in the final decree. This amended bill also set forth the substance of the proceedings in the state courts with respect to the estate of Thomas H. Blythe, substantially as contained in the plea of Florence Blythe Hinckley and Frederick W. Hinckley, and alleged, further, that the defendant Florence was born in England, the bastard child of an unmarried woman; that at the time of her birth her mother was a resident of England, and a subject of Victoria, queen of Great Britain and Ireland; that she remained in England at all times until after the death of Thomas H. Blythe; that she came to California for the first time in 1883; that she was then an infant, about 10 years of age, ineligible to become a citizen of the United States, and, when she arrived in California, she was a nonresident alien. The bill then refers to the treaty of 1794 between Great Britain and the United States, sections 17 and 22 of article 1 of the constitution of the state, and sections 671, 672, and 1404 of the Civil Code of California, relating to the rights of foreigners and aliens to take real estate by succession as heirs at law of deceased citizens of California; and the bill alleges, in various forms, that the superior court of San Francisco was without jurisdiction to adjudge or decree that Florence Blythe was capable of inheriting the real estate as heir at law of Thomas H. Blythe.

The bill further alleges that, at the date of the filing of the original bill, neither party was in possession of the land situated in San Francisco, but that the same was in the hands and possession of the public administrator of the city and county of San Francisco; that on October 26, 1894, the superior court granted a decree of distribution, wherein all the real property belonging to the estate of Thomas H. Blythe, deceased, was distributed to Florence Blythe Hinckley, and that on December 4, 1894, she secured possession of the same; that said real property is all of it built upon, being covered with stores and tenements which are much used and in great demand as places of business, and which are all occupied by tenants, and bring in a monthly rental of about $12,000, which the defendant Florence receives each month; that on January 18, 1896, the superior court granted a final decree of distribution, wherein the residue of said estate remaining in the hands of the public administrator, amounting to $89,842.94, being the rents accrued from the real property, was distributed to the defendant Florence. The prayer of the bill is that the title of the complainants to the real estate be quieted, and that they be let into possession thereof; that, as to the defendants Florence Blythe Hinckley and Frederick W. Hinckley, her husband, an account of the rents and profits which had been received, or which might thereafter be received, up to the final hearing by the defendant Florence, or any one claiming under her, be taken, and, upon the coming in of the report of the value thereof and the confirmation of the report, be adjudged and decreed to the complainants.

On February 1, 1897, the Blythe Company filed an answer to this second amended and supplemental bill, in which the material allegations of the supplemental bill were placed in issue and the heirship of the grantors of the Blythe Company to the estate of Thomas H. Blythe, deceased, fully set forth. Thereupon the defendant Florence Blythe Hinckley, by leave of court,...